Thursday, 21 June 2012

When I was a student of law in
the Allahabad University, I had read of the British
Constitutional principle 'The King can do no wrong". At that time I
did not understand the significance of this principle and what it
really meant. It was much later, when I was in law practice in the
Allahabad High Court that I understood its real significance.

The British were experienced and
able administrators. They realized from their own long, historical
experience that while everybody should be legally liable for his
wrongs and made to face Court proceedings for the same, the person at
the apex of the whole Constitutional system must be given total
immunity from criminal proceedings ,otherwise the system could not
function. Hence the King of England must be given total immunity from
criminal proceedings. Even if he commits murder, dacoity, theft, or
some other crime the King cannot be dragged to Court and made to face
a trial.

One may ask, why should the King
be given this immunity when others are not? The answer is that in the
practical world one does not deal with absolutes. The British
were one of the most far sighted administrators the world has known.
They realized that if the King is made to stand on the witness box or
sent to jail the system could not function. A stage is reached at the
highest level of the system where total immunity to the person at the
top has to be granted. This is the only practical view .

Following this principle in
British Constitutional Law almost every Constitution in the world has
incorporated a provision giving total immunity to Presidents and
Governors from criminal prosecution.

Thus, Section 248(2) of the
Pakistan Constitution states:

"No criminal proceedings
whatsoever shall be instituted or continued against the President or
Governor in any Court during his term of office."

The language of the above provision is
clear, and it is a settled principle of interpretation that when the
language of a provision is clear the Court should not twist or amend
its language in the garb of interpretation, but read it as it is.

I therefore fail to understand
how proceedings on corruption charges (which are clearly of a
criminal nature) can be instituted or continued against the Pakistan
President.

Moreover, how can the Court
remove a Prime Minister? This is unheard of in a democracy. The Prime
Minister holds office as long he has the confidence of Parliament,
not confidence of the Supreme Court.

I regret to say that the Pakistan
Supreme Court, particularly its Chief Justice, has been showing utter
lack of restraint which is expected of the superior Courts.In fact
the Court and its Chief Justice have been playing to the galleries
for long. It has clearly gone overboard an flouted all canons of
Constitutional Jurisprudence.

The Constitution establishes a
delicate balance of power, and each of the 3 organs of the State, the
Legislature, the Executive and the Judiciary must respect each other,
and not encroach into each other's domain, otherwise the system
cannot function. It seems to me that the Pakistan Supreme Court has
lost its balance and gone berserk. If it does not now come to its
senses I am afraid the day is not far off when the Constitution will
collapse, and the blame will squarely lie with the Pakistan Supreme
Court, particularly its Chief Justice